she came back there as a widow. >> we talked about the van buren administration. are you there? let's go to shawn. >> i was calling about mrs. jackson. i thought she had a son. i would like to comment on angelica's impression with the press. thank you. >> thank you so much.

>> the adopted indian/american child that died shortly before jackson went to washington. angelica singleton's first year, van buren spent the first year in the white house without a hostess. angelica and abraham married in november of the next year. she was hostess for the 1839 season. everyone shouting she was beautiful and glamorous and did an outstanding job and she went on an outstanding honeymoon in europe. french gone to the academy and learned all of this. then she came back for the next season is when she sort of had a problem and that's when she tried the tableau at the new year's open house and this is a country that is interested in democracy.

this is just the beginning of the next presidential election season and here angelica acting in a queenly manner. it didn't go over so well. >> this may be self-evident from what you just told us. did angelica want to serve as first lady or was it just expected of her as the only woman in the family? >> she was dying to. it was all glamour and wonderment. forwanted a bigger stage herself too. >> angelica van buren was a new bride when she took on her

hostessing duties. what was the initial opinion of her? >> she was young. people liked to see pictures of her. it was the trip to europe that did her in, and that did a great deal of harm to the van buren administration. realizetoo naive to that she had gone overboard and she was shocked when public opinion lashed out at her, because we were in a depression, and here she was posing with ostrich feathers on a dais as if she were a queen. >> how did she present herself

on a dais? >> they built it. there was no dais in the receiving room. if she sat on a sofa, that would have been so anti-republican. angelica didn't know better. she had seen victoria. she had seen france. she built the platform and wore the ostrich feathers, in white. after the newspapers, particularly after the whig politicians took over talking about the born with golden spoons in their mouths and wasting the public money, they actually tore out the platform. >> how did the europeans receive the first couple? >> incredible. they really took europe by storm. >> did that help in international politics, the image? >> well, not exactly. angelica's mother's brother was actually the minister to the court of st. james. he was a holdover. he was called a slave breeder by an irish militant. so there was growing tension there.

the publicity of angelica on a positive side didn't really cover up those deeper problems. ofwe're telling the story two widowed presidents who had relatives serve for them as the role of first lady in the white house. a basic question. why was it so important for unmarried and widowed presidents to have a hostess and would that be true for a single president today? >> i don't know. i think there is some importance to it. not as much today as there was then.

in a parliamentary system where you have the chief of state and the prime minister and the president, there is someone to do those ceremonial duties. we sort of piled all of that on the president. there is a function there for a president's partner. that may be too modern. there is a social and entertaining piece that is there. i think it is difficult for these bachelor presidents to pull it off without having a female there. >> entertaining women, ladies of the time, there had to be a hostess. a man alone couldn't do it. thomas jefferson was well known for not being a good entertainer. for preferring men only. when he did entertain, he asked dolley madison or one of his daughters.

thesesically to have large entertainment -- to greet the ladies, you needed a lady. >> this is a house. it is the woman's here sphere again. it is still the woman's sphere. it is a tension between politics and society that is heightened in the white house. >> what's your question, chad? >> my question is while angelica was presented to the english queen victoria, what was her impression? >> we were told that she was charmed by victoria. we don't know of any subsequent correspondence. yes, they were about the same age. >> i really think the european court were fascinated and really relieved that they turned out to be civilized. that they were not backwoods barbarians, which is what they expected of americans.

>> angelica's family was wealthy. angelica herself had a great interest in fashion. she would have come in the best -- the dress in the white house portrait is the dress she was presented to the queen in. she was polished. >> two seemingly very different family cultures. angelica singleton coming from the plantation life, very wealthy in the south. slave-holding family, i would presume. new the van burens from york state, very different approach. how does it work? >> van buren was not a backward

country clod. van buren loved society. littleknown as a magician because he was always pulling off little plans and those who disliked him like calhoun, said he just appeals to the ladies. >> this is a little side bar. some people didn't know the story. martin van buren is responsible for the universal expression, "ok." >> yes. during the election of 1840, supporters of van buren who started referring to him as old kinderhook. the phrase ok hit the streets

in boston and it was picked up. it was a way to talk about old kinderhook. it became the ok expression that we use all the time. question,your georgia? >> i would like to know whether angelica did anything beyond hostessing? any public policy? the people on the missouri frontier were disappointed of him not helping with their causes because they had conflict with the other frontiersmen? did she do advising or was she strictly a hostess? >> we have no evidence of her delving into politics. actually even later in life, even during the civil war, she is quite quiet about where her sentiments fell. she clearly does not express a political view. i think she would not have had any influence. >> her influence was a negative one. >> because of her mistake. she was young and she made mistakes. >> did she recover? >> she did, i think >> they said they tore out the dais and she stopped doing the posing, but by then the administration was almost over anyway. >> this wasn't -- angelica wasn't going to sink the administration. there were not to mention this terrible depression. there were some serious issues that the united states was

really just coming to talk about. slavery being a huge one. indian removal being a huge one. these are really big difficult issues. the sides, the north and the south are pulling apart from each other, quickly pulling apart from each other and room for negotiation is rapidly evaporating. >> do you know anything in more detail, the question from the caller in utah about the mormons and van buren? >> i don't. >> let's take a question now from bill in staten island, new york. hi, bill. you are on the program. welcome. >> how are you doing? this is a side bar. in the gore vidal book about aaron burr, he insinuates that burr is the true father of martin van buren. how serious would that claim be? >> well, it is actually called "burr: a novel." i will say it is a delightful tale and he did look sort of like that. it is almost impossible, although during 1840, that was certainly raised. van buren had been a close associate of aaron burr's. jackson had actually been a close associate of aaron burr's as well. both of them charmed by him. but the likelihood that, you know, that martin van buren's mother, living in this tavern in kinderhook, new york, after having all of these kids already, she had already been married once before, having an affair with aaron burr was highly unlikely. >> bethany johnson on twitter. i would like to know if angelica had any kids? >> yes, she did. these one thing about

young women in the white house. they are pregnant much of the time. they are either pregnant or have given birth and they nursing or the child died and they are mourning. that was angelica's situation. >> angelica was pregnant twice in the white house. the first child she lost,

rebecca, and shortly after the tableau scene, she retreated from public life because she was already pregnant and women were kept in private after that. >> yes. she had three boys after the presidency she had three boys. >> singleton, travis and martin iii. >> carrie in independence, missouri. hi, you're on. >> hi. i was wondering why martin van buren didn't marry after his wife died? >> interesting question. martin van buren talks very little about hannah lewis. they were first cousins. >> hannah was his wife. >> they had, you know, they had all of these children together. he had her reinterred in kinderhook later in his life. we don't have many stories about romantic dalliances with other women or possibly proposing. he had friendships with women. >> rachel davidson asks why didn't martin van buren mention hannah in his autobiography? >> it is true. he did not mention her. it is a rambling bit of a biography.

it is 800 pages long. his son, john, when he had his first child, wanted to name her after his mother. he probably didn't talk to his sons very much about his wife. he always kept a locket with a painting of her with him and that's all we know. >> we're going to take people by video to a place you know next. the historic home, now the historic home that the van burens occupied.

can you tell us about it before we see it? >> sure, it is the house he bought while he was president in case the white house didn't work out. we know that it didn't. it was the home of one of his nemeses in kinderhook. he was very pleased to acquire that property. >> well, we're going to visit it in kinderhook, new york. you'll see that next.

>> angelica and her husband abraham would spend the summers here. there were occasions where they would spend parts of the winter months here. president van buren lived here. here in the dining room angelica van buren would have served as hostess. he had a number of political events here. during those times, angelica, if she was at the house here, she would be the hostess for those occasions just as she was at the white house. she was quite refined being that she was so wealthy. she had all of the appropriate social grace at the time. the ambassador from france complimented angelica van buren. martin van buren purchased this home in 1839 in the second year of his presidency. along with 100 acres. later he had another 100 acres. here in the greenroom, typically the women in the house would engage in a number of activities, polite conversation, read or recite from memory to one another. they would play parlor games in here. angelica van buren was trained in philadelphia on the harp. we have a harp here. there were occasions where she would play the harp for other female guests here in the greenroom. this is the breakfast room here

at lindenwald. it is the place where the family had their daily meals. the china that you see here is the daily china used in the household here. they ate off of these plates. you can imagine her serving somebody tea from the picture or passing the gravy boat. in july of 1843, while angelica and abraham were visiting her father in law here she suffered a miscarriage and we know she convalesced on this couch here at the main hall. she had another baby girl die as an infant while she was there. angelica and abraham had three sons that lived adulthood. they would have spent a great deal of time while visiting her father in law and president van buren. it is easy to imagine her wearing one of these dresses here at one of the events at lindenwald. or at the white house. the parasol she likely would have used while she was out strolling on the grounds. it was a large farm of 240 acres. i believe that martin van buren and his daughter in law, angelica, had a close relationship. he was a very amiable man. that is why he was successful in politics. she was trained in the social graces. i think they genuinely cared for one another. >> we were looking at clothes. there were a number of them preserved at different places. >> yes, the smithsonian. >> we have been talking throughout the series about the early first ladies and who how they influenced fashion trends in the country. looking at these clothes, was angelica van buren a fashion trendsetter for the country? >> she certainly was. for the portions of society that could afford those kinds of dresses. she was definitely like jackie

kennedy, someone to be emulated. >> well, let's talk about kinderhook and how the van buren family used it after they lost the white house. >> this is a period in american history when farming was actually something you could make money at. and van buren actually did put a lot of effort into running it as a productive working farm and making money doing it. that was an important component of life. he also had his family there. he had his cousins and nieces and nephews from his wife's brothers and sisters come. he had the singleton family stay there and john van buren, his wife stayed there. it was a household full of family. >> he also had continuing political ambitions? >> absolutely.

he left the white house. although he never claimed to run again, he certainly made it clear if the country called for him, he would do his duty and step forward. in 1834 he thought he was going the get the democratic nomination in baltimore and he didn't. it was a big deal and it was again another major crack in this national party between north and south. >> what about his bid with the free soil party? >> sort of like another dutch president, theodore roosevelt who bucks the party he represented in the bull moose election, martin van buren comes up in 1848 and makes a substantial decision that he is going to go against what he spent his life working for, the united unified national democratic party. he would run the third party campaign with his son john. he runs on the free soil, free liberty ticket.

it is a very interesting party. a forerunner of the republican party. and they basically believed in free soil, free labor and free men. >> is there any evidence that angelica and/or her husband and various other brothers were involved in the president's future ambitions? >> no, not really. john was involved because john stayed political, but certainly the others were. abraham went to west point with jefferson davis and robert e. lee. he had friends on other sides of this issue. >> before she was widowed, she spent the last part of her life in new york city. again that cosmopolitan yearning. fromt's take a call courtney in naples, florida. >> good evening. i grew up in the 1930's and 1940's.

my recollection of lindenwald is the following. number one, it was an abandoned home. it was in disrepair. the grounds were totally wild and any evidence of a farm was totally absent, and i guess my question is at what point did this property get improved? my recollection is that a man with some wealth bought property and started to repair it and then the government took it over. thed you fill that part of story in? >> sure. your memory is quite accurate. van buren and van buren's family lost lindenwald after van buren died. they lost it almost immediately. it became a farmhouse and by the 1930's had been run down. houseried to make a tea

out of it. a couple of other things. basically it had never been owned by anybody who had enough money to do anything great for it but also didn't have enough money to ruin it either. jim campbell purchased the house and tried to restore it somewhat and saved it from being thenplete ruin and legislation was passed to make it part of the national parks service and it was the national parks service that restored the house in the 1980's. >> next is a call from marilyn in sarasota, florida. >> how are you doing? i'm enjoying your program. i'm wondering what angelica's husband, abraham did, while she was acting as hostess in the white house and where they

lived while she was there? >> thank you. they lived in the white house. the president's staff always lived in the white house in the 19th century. that's why they usually had relatives because they wanted people that they got along with. if there was an available son or nephew. they lived in the white house in the family quarters and abraham was the secretary and the principle aide to his father. >> he fought in the seminole war and during the mexican war he went back and became a paid master. a hannah didn't seem to be moving figure in his life. >> what i wanted to say was that van buren was not so odd in not mentioning his wife. many 19th century leaders of political or scientific leaders would talk about their lives

without mentioning wives or children. that was just so personal. it had nothing to do with their success. >> well, we have about seven left and what i would like to do is wrap all of this up and talk about the time period, two administrations, jackson followed by the van buren, very much intertwined with scandals of politics. let's talk in a broad sense about the changing country and the changing political parties. >> one of the major things that we forget, because we're so comfortable with the united states being a two-party system and that being what democracy is or at least is here, we forget that during the early republic, there wasn't a two- party system, that the founding fathers hated parties and thought they would be terrible for democracy. there was this generation, particularly martin van buren who said we need to have an ordered, structured system, of making political things happen and that's the parties. we have to have a philosophy. we have to show up together and vote on the same thing and we have to hang together, or these sections of the country or these differences in the democracy will spin out of control, and actually they did.

>> how did washington, d.c. change over these 12 years? >> it grew like crazy. at the beginning, of course, it was basically just kind of a big -- with trees and dirt and then there would be a house and a building there. then it became actually a city and it became a place to take account of. it was 40,000 -- i think what is so important about this period is that it is the time when steamboats had changed the whole situation about settling from the south. slave power is growing. it is the most profitable part of the country. abolition sentiment is growing like crazy in the north. that's why we see somebody like van buren running on the free soil ticket, which is in fact, an abolitionist party. inyeah, this great elephant

the middle of the room, which slavery, really comes into focus and we have set the stage for the coming of the most horrific test of democracy that we had. the civil war. >> interestingly, during this time period, we had two apolitical first ladies serving these very tumultuous -- >> she writes that she is loving these old renderings. change this white house during these years? >> the north portico was added. that piece that you see sticking out from the house. van buren redecorated the white house. put in plumbing and central heating.

got a lot of guff for it. the blue room was first called the blue room during the van buren white house. moneykson spent a lot of on it as well. that was on basic repairs. one thing, if you're following the history of that building, is that it starts out a certain and then it gets all run and things break, just as it does with your own house, and they keep putting off repairs and putting off repairs. when they do them, they are pretty much needed. andrewcially if you're jackson and bring 20,000 people inside. >> that too. isabella in davenport, iowa, you're on the air. welcome. >> i was wondering why did they usually marry their relatives? >> ok. isabella, can i ask you how old you are? >> 12. >> and are you learning a lot watching this program? >> yes. >> well, we're glad to have you in the audience. thanks for your question.

>> well, particularly in frontier settlements where there were a limited number of people, oftentimes your cousins would be the only once who would be available to you and so it was not uncommon at all. it really wasn't even uncommon for double first cousins to marry, which sometimes happened. people didn't have any sense that there was anything odd about it. thingmed like a good because you knew what that person was like. you knew all about them. and there wouldn't be any bad surprises in marriage. >> in van buren's case, she was a dutch speaker and married into the dutch community. these were their own people. >> i want to show you the book she had written, one about martha washington, we showed you earlier. this is her story about rachel and andrew jackson and being so gentle. it is for those of you who want to learn more.

it only skims the surface, these 90 minutes here. let me have you talk about a theme michael has brought us back to several times. the changing role of women in politics. what was happening for women and their ability to influence politics during this period? >> with the abolition -- there were many women reformers who were part of that great movement who were also feminists, and so it wasn't so peculiar to see women having opinions. earlier when you say oh, did these young girls actually have any political influence? not at all. people thought that was the right thing. good thing too they didn't think anything about politics, but that was changing drastically. >> well, thank you. thedid the ladies during administrations deal with the panic of 1837? you would say not so well? >> they, like everybody else,

had no idea what was going on. i mean, it really was a panic. >> nor how long it would last. >> we have one last call, john in oklahoma city. >> yes. my question was i always heard that the. >> appearance spoken out in the white house. you may have answered this. dutch inn burens spoke the white house. you may have answered this already. >> i do not believe that his children did. martin van buren did speak dutch. he certainly spoke out. by the time you get to his retirement, he talks about writing out to the countryside to talk to people who spoke out. in that moment between his birth and retirement, the dutch speaking in the hudson valley began to die out, even though it

was 150 years after the english conquered it. >> he lost the election. what happens next? >> what happens next? >> who comes in to the white house? >> the war hero, william henry harrison. harrison comes in. unfortunately, he catches pneumonia during his inauguration and dies 31 days later. who is a tyler, terrible precedent. >> that sets the stage for an interesting conversation on our next conversation on "first ladies." thank you for being here tonight. we appreciate your time. >> at thank you so much. ♪

>> next week, sudden-death and secret marriages, the first ladies that served in the role between 1841-1845. and that harrison died because of complications from a cold -- william henry harrison dies during a complication, "he catches during his inauguration

speech. for the first time in our country's history, the vice president and his wife assume the role of president and first lady. 17 months later, death comes to the white house as leticia tyler passes away. now entering into the picture, julia tyler of new york. we will tell you the story of the romance leads the 54-year- old president and his bride to get siegler -- secretly married in new york to avoid the objection of his children. next monday night, "first ladies:influenza and image." ladies: influence and image."

with the white house association, we're offering a special edition of the book "first ladies of the united states of america." there are thoughts from michelle obama on the role of first ladies throughout history, now available for the discounted price of $12.95 plus shipping at c-span.org/products. created by america's cable companies in 1979, brought you as a public service by your television provider. >> coming up next on c-span, two legal experts debate same-sex marriage. then the ninth circuit court of appeals oral argument in the proposition 8 case that will be heard at the supreme court tuesday. later, the u.s. ambassador to pakistan talks about relations with the nation. hears oraleme court

arguments tuesday in the hollingsworth v. perry case, the case challenging the constitutionality of california's same-sex marriage ban. two legal experts will debate their views on that issue. this is 90 minutes. >> you have a program that describes our panelists. both of them have filed briefs in the cases pending before the court. to my immediate left is paul smith, a partner of general and the block in washington, d.c.. among his notable achievements, he was the victorious council in lawrence versus texas. to his right is edward whelan with the public policy center. he was with the reagan administration -- >> i was in the bush administration. >> excuse me. not that old.

the first case i will talk about is the one that will be argued tomorrow. it is called hollingsworth against perry. it began with the california supreme court ruling that as a matter of california state lot of laws banning same-sex marriages were unconstitutional with the california constitution. immediate become a process was begun in november, 2008, and the voters in california passed an initiative, an amendment to the constitution that says marriage shall only be between persons of the opposite sex, one man and one woman from outlying same-sex marriage. at the same time, california high already in place well before the first decision

statutes that created domestic partnerships that provide all of the legal rights to same-sex partners as marriage did, but they could not call themselves married. the reaction was fairly prompt. the case was filed in federal court after an unsuccessful case in state court, challenging constitutionality this time under the federal constitution of the ban on same-sex marriages. the governor of california, and the attorney general, who were the main defendants, declined to enact a statute. proponentssult, the of proposition 8 came in and defend the case and the merits, including a trial, before judge walker in the northern district of california. after the trial, judge walker ruled on both due process at an equal protection grounds that the law was unconstitutional. an appeal was taken by the proponents and the governor and attorney general did not appeal.

that cause some difficulties. in the ninth circuit, questions were raised as to whether the court had jurisdiction, as to whether there were -- they were the proper party before the court. and it was referred to the california supreme court, which ruled as a matter of california law that the performance of the issue were the proper parties to defend the statute when the attorney general and the governor did not. then went back to the ninth circuit and the ninth circuit decided the law was unconstitutional as a violation of equal protection, unlike the district court, which ruled on due process. it did on a very narrow grounds, on the grounds that because california once had same-sex marriage as a matter of state constitutional law, it was subject to a higher standard when it tried to take away that right and the state had not met that standard.

on bond review was sought and it was denied, and in the case went on to the supreme court, which has agreed to hear the case, including the issue of whether there is the proper jurisdiction, the problem being that the proponents do not have standing in the ordinary sense of the word, that is, they are not directly injured in the normal sense. the supreme court will hear that argument tomorrow. in the meantime, the solicitor general of the united states has intervened on behalf of the challengers as to the constitutionality of proposition 8. the second case is different. in this case, the plaintiff, edith winter, was legally married under the laws of the state of new york to her spouse. and when her spouse died, the irs decided that because of the defense of marriage act, which says that for federal law

purposes papers -- a person is only married if they are married to a person of the opposite sex. she had to pay the estate tax because the estate tax can only be forgiven if parties are lawfully married as a matter of federal law as a result of the defense of marriage act, which was passed in 1996, and says that only opposite sex marriages are valid as a matter of federal law. only in that instance with the tax be forgiven. the cases will be heard on wednesday and is one of many defense of marriage act cases. the plaintiffs have prevailed in all of them in a number of jurisdictions and the court chose this one as well. originally, the justice department defended the constitutionality of doma and then after it lost in district court, it decided not to defend the constitutionality, but that a heightened standard of review was applicable, and under that heightened standard of review,

it could not pass constitutional muster. when the district court does this in the case before the court now, the house of representatives known as the bipartisan legal advisor regroup entered the case to defend on behalf of the house, claiming that the law was unconstitutional, which meant that the -- that at least there would be an adversary present, which there would be in the court appeals case. votee court appeals by a of to do want to buy they struck down the line and the cases now before the court. when the court granted review, it did something quite interesting. although both the house and the solicitor general as well as the plaintiffs all believe there is jurisdiction, the court independently raise the jurors -- the question of whether there's jurisdiction or not ended appointed a harvard law professor to appear as amica as to argue that everybody

involved is wrong and that the court cannot reach the merits of the case. the plaintiff will prevail in terms of getting her $356,000 plus interest back in either event, but the real question is what the impact of it will be beyond the plaintiff. and the same may be true in the prop 8 case. the four plaintiffs there were held by the diss record to be entitled to an injunction ordering the state to grant them a marriage license, they certainly be able to get a marriage license if the decision is upheld. even if it is satisfied on grounds of lack of jurisdiction. -- set aside on grounds of lack of jurisdiction. what other impacts will have? any other thoughts on jurisdiction or other fact that our audience should know about before we proceed? oflet me mention one aspect the prop. 8 standing that allen

did not have a chance to get into, that is, the specific kolding of the california supreme court was that the prop 8 proponents represent and are entitled to certain interests of the state in a litigation. the court did not reach the separate question that the ninth circuit court certified to it, whether the prop. 8 proponents had a particularized entrance -- interest. i think it is clear that they will prevail on the standing issue and the court will be decided the case on the merits. >> i really disagree with that. >> good. >> i'm not predicting that steny -- standing will be the basis of the decision. but i think that because of the exact status of the proponents as a matter of federal law and whether they speak to the states in the way they have to based on the state injury is clear enough, and there is a brief by walter general that

talks about that problem. if we're looking at the biggest questions the court could reach in the case, that would be a good way to do it. >> you think there is clear lot? -- clear law? or do you think that it makes it difficult for the supreme court to not reached the merits of the decision? californiathe supreme court withholding fills the gap that the u.s. supreme court in dicta have recognized in a case called arizona vs. english, i believe. >> yes bertran >> and it -- yes. it basically says that now we are proponents acting on behalf of the state.

i do not mean to be predicting what the court will do, but -- >> they offered it. >> yes. crestview think it matters that -- >> and do you think it matters that they went to get permission? do you think the timing matters in any respect? >> no, i do not think it does. i think the california supreme court is the authoritative interpreter of state law. i do not think it would have made sense for it to have been done any earlier. at least, if your account of what happens in the district court proceeding is right. there would have been no reason for judge walker to certify that question for the california supreme court. >> the thing that is kind of murky about it is that they were the official proponents of the initiative. but it is not like they were designated that they could speak for the state or do the kinds of things that a special attorney general could do. it is expected that they have

standing with the weird situation that 40 years from now, 80 years from now, whichever one is left alive will still be defending them. and there are five of them and they could disagree about how to defend. there is no process by which it can be sorted out. i could imagine that the court would say, if you want to have private citizens representing the state, you ought to have at least some kind of deputizing procedure and say, that people will find the state with their position in court. -- these people will bind the state with their position in court. >> the initiative process is designed to bypass obstruction of state officials. >> let me ask you this question, because i know you have written about this and you talk about this.

do you think that officials, both federal and state officials in both of these cases were right to you refuse to defend these cases? >> no, they were derelict in their duties. they were not carrying out the duty they were constitutionally charge to do. if you look at the obama administration and the defense of marriage act, first the administration sabotage the case in its pertaining to defend and then abandoning the arguments that had been made previously in legislation. and then failing to adopt the claims made by both parties, it claimed that it had some basis in no longer defending the defense of marriage act at all. and then in california you had governor schwarzenegger and then attorney braun failing to live up to those responsibilities. that creates complications and it may explain why we do not have too much trust in this area.

there can be some we're a hypothetical situations down the road. -- weird, hypothetical situations down the road. but i think in both cases there is ample room for the court to reach the merits. >> paul, what do you think? minimalems that the expectation of people in this position is that they file the appeal. and therefore, make sure that the case gets up to the highest authority of court to decide the merits of the case. the decision that the obama administration made to continue to enforce doma and also to bring in all the way to the supreme court simply said that we will give you all of the constitutional analysis that we think is defensible. in the point of litigation were cases were being filed in the second circuit, where there was no law of the circuit that could be applied to discrimination based on orientation and when you sit down to answer that question according to what the rules are,

difficultaordinarily to mount a decision that says that discrimination based on sexual orientation ought to be subject to a rational scrutiny. they came to the lawyers conclusion that they could not make that argument. the only argument they could make is that doma implies strict scrutiny under the equal protection law, which no one has been able to argue because it is not arguable. the law is so close to flat out irrational that it cannot come close to satisfying scrutiny. >> paul said the magic words, and not all of the students in the room here, and certainly not the audience, understand advance constitutional law and know what a heightened scrutiny is all about, and intermediate scrutiny, and rational basis. can you give us a primer on that?

>> under the 14th amendment there is an equal protection clause that says you should not deny equal treatment to groups of people the law on the other hand dr. oz distinction between between distinctions groups of people all the time. there are people who speed and do not pay money on tickets and those who do. the law says that certain kinds of discrimination are subject to extra heightened scrutiny because they are viewed as presumptively bad, presumptively based on othertimate animus or criteria. and virtually other lines that are drawn between groups of people are subject to the constitution and submit to rational scrutiny and in most instances, that means it is upheld. the first question that you have to ask is when applying equal protection clause, are we going to view this as gender discrimination or of economic regulation, or some category in between?

it is all about ratcheting up the level of scrutiny. >> what is the effect of higher degrees of scrutiny, in terms of being able to defend a lot? >> in order to defend the law with heightened scrutiny, you have to come up with not only rational justification, but a very compelling justification. it has to be the real reason the law was passed, not just hypothetically reasons. and there needs to be no prescriptive way to achieve that same purpose. basically, it means it is a very difficult obstacle course for the defender of the law to get through in proceeding to persuade the court that the law should be upheld. gethe challenge is to haydns guarantee -- heightened scrutiny and the federal law has come in and said that they're both able to get heightened scrutiny. >> right, basically that people should not be discriminated against based on their gender.

>> you ascribe that, that sexual orientation ought to be treated like gender and so forth? >> i accept it in terms of rational basis and heightened scrutiny, of course. i think we see a lot of malleability in both standards that judges have introduced. i would contest whether there is any real intellectual integrity at all to heightened scrutiny. the more important point that i make is that when you're dealing with something like marriage, male-female marriage has been around in all stages of this country since the was first adopted, in all states in this country since the civil war. the idea that traditional marriage has been

unconstitutional since 1868 is far-fetched. let me be clear. we need to distinguish constitutional views from policy views. and there is a debate going on in this country about whether states, and the federal government in its role, should redefine marriage to include a right to marry a person of the same sex. and is a proper discussion debate to go on. my feel of the constitution is that does not speak one way or the other to the question of same-sex marriage. it leaves the matter to the political process. it is permissible for people to obtain marriage laws and it is permissible for them to revise them. but the idea that judges are going to play around with these levels of scrutiny and determine something that is so clearly established everywhere as constitutional, as expected is now going to be thrown out the window, i think there's something wrong with standard of scrutiny if we wield them in

that way. >> it suggests a certain level of fear of the level of scrutiny if you just apply the rules. what he has said is that we should go straight to justification and that is why we should not have any scrutiny in the first place. when you decide what level of scrutiny to apply you do not look at the particular law at issue and say whether it is a good law or a bad law. you say, if we're going to have marriage and a people do not, is that something that is presumptively good or presumptively bad? is that based on a history of prejudice or real reflected differences between these two groups of people? most of the time gender discrimination is not a good thing. is it like that? or is it not? is it bent that clearly, it is. these groups of people, just

like minorities to have been kept in oppressive positions, and they are kept in a way that is completely irrelevant to the benefit they bring to society. laws are designed to prevent them from ever having the chance at marriage equality. then the question is, under heightened scrutiny, does the law that continues to discriminate against gay people and marriage rights have justification? what are they? are they sufficiently compelling? that is a separate level of analysis and i do not think you should mix them together. >> i do not have any problem at all about how the courts except to the standard of everyone you should go on here. i'm simply making the point of how malleable they are. we i'm happy to address how looked to these standards for

rational basis review and how not to apply. -- how it ought to apply. the city of clyburn case, where individuals in a group affected by law have distinguishing characteristics relative to the laws that the state has been able to implement. of course, they're very reluctant, as they should be, to use high uncertainty. heightened scrutiny. we have been talking for several minutes about these cases without discussing at all what marriage is, what the purpose of marriages, and why it exists. if we look at those fundamental questions and then think about the standards of review, the answers become quite clear. why did marriage develop? in this society and elsewhere in the world. marriage exists in order to channel the procreative capacity of opposite sex couples in order to find a way and live -- a way to raise and civilized those born out of the will and

-- those barbarians that come out of the womb and transfer them into productive citizens. that is the present marriage exists. it explains why the male-female component of marriage has always been at its core. that can be changed and it is constitutionally permissible to change it, but when you understand that and see that is what is at the core of i think the case becomes very easy. >> i think what happens with constitutional law in an area like this is that the principles that were established in 1868 are still there to be invoked by new groups of people as these situations arise over time. and when the net has changed is that we now have hundreds of thousands of gay couples out there living in long-term relationships and the supreme court has the same importance of function to them and raising children and interacting with society.

that has to be taken into account as to whether there is a sufficient justification for changing the definition of marriage. the world as a different place and under the enduring principles of the 14th amendment applies -- amendment, gay people have the same right the constitution in an oppressive situation as everybody else. black people got it. ethnic groups got it. within got it. but those gay people, they are too late. -- when men got it. but those gay people, they are too late. jurrjens or to have to fight it out in a democratic process. >> do you think that the constitutional rights of gay people today are greater than 100 years ago? >> i do. i think the rights of

discrimination take into account of how people are living. there -- the whole world is different. there are gay families living in long-term allegiance down everybody's street and to suggest that somehow we're going to go back and do this what thaddeus stevens things about gay marriage in 1868 is wrong to me. >> democratic processes are not the proper forum for accommodating the changes you are describing. why we cannot through states and through congress decide how to address this, that is what a constitutional republic is all about, not thinking that judges have the authority willy-nilly to impose their own view and upset the social institution of american society. aswhat makes it constitutional republic as opposed to a pure public is that there are rules that

constrain the way you do things. you can do some things by democratic vote, but something you cannot. look at the principal protection clause and how it works. is this a group of people that are to be able to invoke in other -- and with other people have in similar situations? i think the argument is extremely compelling if you take the court ruling in lawrence vs. texas, that the government has no business telling people that they should not live together and be having sex together. the people who dislike that are relevant to law. given the situation that we have with tens of thousands of children in these families living without the benefit of their parents, i think that is a constitutional argument for not just letting the democratic process go forward. it is a strong one. if you look at how things move, they would probably repeal brought eight.

there are 30 states that require you to over can't -- overcome the constitutional amendments precisely because they do not want their students to have the opportunity to use a democratic process to have their needs met. >> state constitutions are easy to amend. >> some are. some are not. >> they can be amended -- they have been amended to be there with the rna can easily be amended the other way. i think too many people use that as a model to make people think that it is too difficult at the state level. >> i want to turn to another issue under this heightened scrutiny. that is, one of the test that has applied under heightened scrutiny is whether the characteristics are immutable.

what is the state of the record of these cases and what is the status of knowledge about the mutability of sexual orientation, and should that be a deciding factor in any respect? >> the science is that for most people, gay people and street people, their sexual orientation is largely not subject to change. the professional groups that filed briefs in these cases, the psychologists and psychiatrists and everything will tell you that efforts to change orientation one way or another through therapy will not succeed in most cases. >> was that issue tried in the prop 8 case? >> there were certainly thought -- testimony about that. >> was there a fact finding? >> i do not remember whether there was a fact-finding or not. but remember, there are people who are bisexual and go back and forth. it is not that for everybody orientation is all one way or all another way.

it is largely to that wherever you are, you are. no one is 100% sure how much of it is genetic, how much is nurture. the real question ought to be this. is this something that people should be required to give up in order to be treated equally? i don't think anybody could look at that and say, a person who knows that they're gay ought to be required to live a straight life in order to have full equality under the law. >> i think we have jumped at a little bit. i'm happy it -- happy to jump into this, but in terms of heightened scrutiny the court has made it clear that the court should be barry reluctant to establish new class is. >> but it has to be categories like race or gender. >> i agree, but one of the things that the court at the mnf-i is political powerlessness. -- the court has identified its political powerlessness.

>> that was next, this. >> about the point of the mutability, i'm going to cite plaintiffs' experts from the prop 8 case. these are all people that opponents of proposition 8 called as witnesses. first, even the definition of sexual orientation is disputed by the other side's experts. is it behavior? is it the desire? is the identity? itself identification? plaintiffs' experts found that there is some degree of same- sex behavior, desire, identity, the same -- the three categories overlap only in 24% of men and 15% of women. plaintiffs' experts also testified that it may very through the course of a lifetime. with females, it is a lifelong process in which multiple changes and sexual orientation are possible. these are not my words.

this was some social scientists. and yet another, we do not really understand the origins of sexual orientation in men or women. and in 2009, the psychiatric association said that there are no studies supporting any fears of a biological ideology for the origin of homosexuality. i do not claim to understand much at all about scientific issues of sexual orientation. what is clear to me is that the scientific evidence is radically inconclusive on this. and there's simply no basis, no scientific basis for the statements made by the other side in the briefs that this is somehow immutable. or that there -- that every gay and lesbian is determined that

we at the moment of birth forever thereafter. >> the vast majority of gay men know that they are gay very young and say that with their whole lives. with a man, there is somewhat more fluidity. but if you think that sexual orientation is of the net wanders around, if you are a straight person, what are the odds that you're going to wander into being gay when you're 30? >> it happens allot. >> no, it really does not. >> if the supreme court were asked to rule on this case and one of the issues is a mutability or something close to a mutability, should we have a trial on this? >> it is not a scientific question. it is a question ultimately of values. is this a characteristic that

is likely to be something that is part of their being -- part of their being over a long time frame? or to put it differently, something that people should be required to give up in order to be treated like everybody else? most not by any means the important criteria, but that is how you ought to think of it. >> it ought to be, rather than actually is immutable. let's go to the powers that you want to have as a significant factor. we will not have an opinion as to how you make it the most significant progress i've already said that. yes, it is the most significant. the very question is when you remove something from the democratic processes. when you have the court intervene on behalf of the politically powerless? but the court said in clyburn is that the court negate any claim that the mentally retarded are politically powerless in the sense that they do not have the

ability to attract attention of lawmakers. there is the definition of powerless. no ability to attract attention of lawmakers. i think any real assessment of political power in this country shows that gays and lesbians have -- is a credit to their lobbying and the cases they have made. they have amassed a tremendous power. in fact i think it is the second largest lobby administration. -- is again largest lobby. the administration has spent to do the will of gay and lesbian cases in the doma case and with don't ask, don't tell. >> and with prop. 8, 2. >> absolutely. and there is a briefing here that says that gays and lesbians are one of the most influential and best organized groups in modern politics.

and in terms of political power -- and have gained political power and popularity more than any other group in history. that is something to celebrate. but to come in here and to claim that they're politically powerless and that they need to have the special benefit of heightened scrutiny, i think that just does not wash. >> for a variety of reasons everything he said makes no sense. first, the standard that he would apply of whether it can attract the attention of other people under the political process, under that we have to get rid of the standard of heightened scrutiny for black people, for women, and others in the political process. secondly comply and more importantly, the whole idea that somehow because the obama administration happens to be more sympathetic than the bush administration that somehow constitutional law is going to

change, the constitution is an immutable thing. under that theory, you could be fired from any job in the u.s. if you were found to be gay. and then it was that they could constitutionally marry their same-sex partner. but now they cannot because some states pushed it through. the supreme court is very clear on this. it is neither a mutability nor political powerlessness. it is the other two factors. which is, does this group have a long history of being oppressed and subject to prejudiced? yes. and does it affect your ability to contribute to society? nope. once those questions are answered, the court says they are sometimes important and sometimes not important. they certainly did not have much to do with the decision in 1975 to make heightened scrutiny applied to gender discrimination for the first time. during the women's movement in

dealing with the population as well over 50% of the entire population, it is still heighten scrutiny. >> was that in part because many of the law's being challenged were written before women either have the right to vote or exercised any considerable -- ? wholectly, there's a history of disenfranchisement. there were still lots of laws on the books. >> veloz we are talking about were written at a time when you would say they did not have any political influence. comparablehat it is to what blacks and women experience, it was nothing of this sort. >> i do want to raise the question naturally, the political power of the gay and

lesbian community has increased substantially in the past 15 years. there's no question about that, is there? that is one of your. points. and one of paul's. >> a friend at a law firm in town said, you cannot be any law firm in this town and oppose same-sex marriage. clearly, he had to leave his law firm. >> i think that was for somewhat different reasons. it was because they had cleared the case. >> you believe a lot of things. >> should we judge doma on the political powerlessness of 1996 or as of today? measurery is that you the degree of scrutiny based on the ability to affect it in legislative process, not simply to be heard.

there were not very powerful lobbies back in 1996, were there? >> actually, there were, but the more important thing is that you looked to now because of the political power to exercise same-sex marriage within a state, to repeal doma and a host of other things. that --ecisely why ather than going to a highly contentious approach -- why rather than going to a highly contentious approach with decades of destruction of politics over this, it would be best to be worked out through the genius of our system in the different states and by the federal government. we can all make arguments to each other about how that would be and not just have five to nine people make judgments about imposing a right on us.

>> it is easy to say to all the people living in the states where they have no employment protection, housing discrimination, no recognition for the children, and no hope of having any of that change anytime soon. that is the reality of the situation if you go state-by- state. it will be 50 years of people waiting to get those basic kinds of equality. that is the reason why civil- rights movements are entitled to go to the supreme court and say, this kind of discrimination ought to be taken off the table. it is unacceptable and not justified under the standards it applies. that is what the plaintiffs in the doma case andy perry case have done. and the doma case is even weirder. these are people who were married in their states. >> the state of new york would

have recognized the marriage. >> there are people who dispute it. but now the governor of the state of new york. >> it was not settled in 2009 when the woman died. many any rate, there were people married under their state. >> why should those people have to come to congress in order to be treated with minimal debates ebright their own government when their state have married them? >> i think that brings the question of of minimal dignity. this gets to the whole question of exactly what doma does, which perhaps we can turn to. >> i want to do two things first. but first i want to ask paul, if the plaintiffs in doma are

asking for some kind of rational basis or some kind of higher review, is there any basis for doing it if your state is medium rare or medium? >> i remember talking about the debora levels of scrutiny and it suggested that there was this -- >>for its intermediate scrutiny for gender. >> if you go back to some of these cases, there were times when the court is more likely to be skeptical of justifications. and these are situations that are somewhat parallel to those that apply to getting you to heightened scrutiny land. aich is to take a ride with fairly good reason to think that it was a lot paste -- a law based on animus or prejudice. the law that kept the mentally retarded out of a neighborhood and a pretended it was a traffic concern and it was

obviously protectionism. romer was amendment two from colorado, which was enacted by popular vote in enacting this vast ban on any gay people in the state of colorado. whether it is a tier of kamal orrick you say that-- or you simply say rational basis supplies, but differently in different circumstances for you have different concerns about what is going on, that is what the supreme court has done, like it or not. >> i will give you a chance to respond, and then we will take a short opportunity for the audience to ask questions, and recognizing that we will get to the other questions in just a minute.

verywould like to say briefly that i think paul's discussion illustrates the and coherence of -- the incoherent -- incoherence of the court's approach to these things, the lack of intellectual integrity in their approach to these reviews. it is why we ought to expect the court to exercise judicial restraint and return to a genuine rational basis review. >> it is difficult to have a debate about something if we will not start with the proposition of all of the existing supreme court case law working with these. >> you did not like the passage i cited from the city of clyburn. >> it is not the law. it is one case. that criteria has not been applied to other situations. >> i'm happy to discuss the

law, but i would have to say that the law as it is is not coherent. the law as it is does not recognize gays and lesbians and you're trying to change that. >> i want to next turn to the justifications. the question i want to ask first of all to paul and then to add -- ed is, should we look at these justifications as -- are the same that apply equally in both the prop 8 challenge and to the doma challenge? tosome of them only apply doma. and understand what you mean by uniformity, but it is for the justification of the defense of marriage act. >> by uniformity -- ?

>> as i a understand it, for simplicity sake, the federal government does not want to discern between different gay couples and they want to treat them equally as bad. as unmarried. >> there are lots of gay couples that which they were married and are not married and not get all the benefits of treatment by the federal government. in other words, in order to treat all same-sex couples as unmarried, we will treat them all the same. >> what congress said in the defense of marriage act is that -- the interest here is making sure that a married couple in texas is treated the some -- the same as a married couple in

massachusetts. so that it is uniform throughout. >> there are two categories of married people, those that get in and those who do not. we are distinguishing would sheen -- distinguishing between married couples. and they want there to be uniform treatment of all same- sex couples, married or not. that is their argument. i do not think it is a very strong argument. >> to have a uniform set of rules, that we do not have to worry about whether somebody is married in one state or another. >> this is the people move around argument, which is the idea that it will be confusing if we do not have a defense of marriage act that says the people are out as far as federal purposes.

some people who are married in massachusetts will move to texas and the state of texas has some authority under the constitution to not always recognize other states marriages if they are against state public policy. firsttates will marry cousins. other states will organize those marriages, my marriages. marriages, etcet era. and if we start having people move around -- common law marriages. and if we have people move around, there will be confusion created by that. and the answer is, the kind of situation that has been rising for decades and decades as other couples have been moving around and the federal law has various law provisions about when you live in a state that does not recognize your marriage, sometimes you'll be treated as married for federal public -- purposes and sometimes you will not. it is blunderbuss to say that will not recognize the

marriages of any same-sex couples, even those who get married in massachusetts and stay in massachusetts. a much simpler solution is to have a much cleaner towards of logroll where you say come -- a choice of law rule where you say, if you got married, it counts. to certainly do not want deny equality to the vast majority of married same-sex couples who do not have any interest in moving to the state of texas where they are not married. >> the reality is, there is no substantive position that is neutral. whenever position the government takes, it either refuses toor subsidize. what congress decided in 1996 with a simple matter that it was quite to stick with the

traditional definition of marriage. the definition has always been understood to exist in the versions of federal law. it was codifying it against traditions of reinvention. we can just degree as a pack -- a matter of policy and say there's no reason to subsidize same-sex marriage. it is permissible for congress to have gone either way. it went against subsidizing forcing the taxpayers, the federal taxpayers of states that do not have same-sex marriage to subsidize it for the states that do. >> every indication, including a study by the gao, is that it cost the u.s. money not to recognize the same-sex couples that are married. >> why should that be? >> because when you have people that are married, but they get

treated as a single run than married to might cost more money pipit there was a proposal -- costs more money. there was a proposal died at the same time as doma and it was voted down. there is no financial benefit to the same-sex couples. the net benefit to recognizing these marriages would be for the federal government. >> these studies are very much contested. >> there is no study on record in any of these cases not with the congressional budget office. >> no one has tried to put anything at all into evidence to the contrary. the >> it is perfectly reasonable for congress to make long-term assessments. and the whole question of whether congress should be endorsing the same sex merit -- marriage movements by redefining the definition of a spouse under law --

>> but that justification is different. but wouldn't congress be able to achieve the same kind of uniformity by saying we uniformly applied the law as paul suggested? it would be uniformity. it would be a different kind of uniformity of uniformity was the only value at stake. >> i have no doubt there are different aspects of uniformity that congress could reasonably choose to pursue in different circumstances. each of those is a reasonable option. >> may be will get one item of agreement. that uniformity is not an issue with the prop 8 case. >> i think that is right. >> actually -- >> i thought i was going to get agreement. >> there is an argument that prop. 8 makes with the 18,000 or so same-sex marriages that occurred in california between the time that the state supreme court opinion and the effective

date of prop. 8. >> that is not at issue in the perry case itself, is it? >> the plaintiff has argued that there is a certain irrationality in prop. 8 in marriages toose continue. >> but it is not the same kind of definitional uniformity problem that there is in this case. >> know. -- no, i agree. >> ok, second, it is often said that one of the reasons that states on the one hand and federal government on the other did not grant the right to marry in the case of california or grant the right to have or whenever burdens there may be in the case of doma is because the voters in california and the congress in doma were acting out caution and wanted to maintain the status

quo. is that a few that you think it's helpful -- is helpful to either side in the cases? >> the debate over the long- term consequences of what redefining marriage would be, i think that people can reasonably forecast, but is ultimately unknowable. theink it is sensible for state or federal government to say, why don't we learn a little bit about what is thoseing in jurisdictions? why don't we hold back and see? why are we rushing to this latest fad and wire we not learning from these other cases? >> was their caution in either or both of these?

>> it york. -- use caution as justification, you have to -- if you are going to use caution as justification, you have to express we were worried about. long-term consequences are another way of -- what are you saying? >> this discussion has avoided addressing what marriage is. the threat that icy -- that ipod pitzi see if the permanent is the threat that i see collapse of the marriage culture in this country. let me be clear. we are already in his state of the collapse of cultural marriage in this country. heterosexual couples are responsible for it. if we understand the importance of linking marriage to procreation and childbearing, and we understand that the goal ought to be the possibility

that children are raised in stable households by the father and mother who gave rise to them, then we ought to be wary, very wary of redefining marriage in a way that completely reoriented away from its core and takes out of it this male- female component that is what marriage has been all about. i guess, many of you are too young to realize this i suppose, but 15, 20 years ago -- all will agree with me on this -- the idea of same-sex was not widely accepted. it was distinctly a minority position. >> i will give you that. >> one can view this in different ways. you know, as a testament to the political power of gays and lesbians, there has been this transformation.

i ought to invite caution on the part of people. do we really know what happens when we redefine marriage in such a fundamental way? you look at all of the social pathologies associated with out of wedlock birth -- again, heterosexuals. let me make that clear. but if this country's going to survive 30 or 40 years from now, then an important part of that is not to redefine marriage completely away from its central purpose. >> this is the same responsible procreation justification. >> can we talk about caution, not about inappropriate procreation caution, but legislative caution. do you think it is fair to describe this as caution? >> it is one thing to say your point to pots -- that you are

going to pause and setting the issue, etc. -- study the issue, etc. you pass and -- passed a law that has no steady. -- has no termination. >> it is federal law. >> it could be, but it has been on the books for a long time. at what point where people saying, they were being cautious in 1996, so now and 2013 that is the justification that will allow continued discrimination, despite the last decade of experience that we have with same-sex couples marrying and the reason people have changed their views about this so dramatically is that they have been able to see what that means, not only to those people and their communities, but the idea that this is going to make marriage for straight people less desirable or less desirable -- less believable as

proved, i submit, to be fanciful. >> i think that it is sensible for someone to think that you can draw conclusions from 10 years -- i'd think it is fanciful for someone to think that you can draw conclusions from 10 years of data. there's no way you can. and to think that you can place social scientist and contradict what experts are saying, this is a matter that will take decades and decades and decades before you're even able to draw any conclusions, if even if not you are then. >> and what does that mean in terms of changing the law? >> in means that it is entirely reasonable for the congress to change the defense of marriage act. and it's entirely reasonable for congress to revise it. it is not something that the supreme court has a proper role in.

>> you think it matters that in the case of california that california has had domestic partnerships for some time frame? that is to take away if the consequence that you are worried about, -- that is to say, the consequences that you're worried about, wouldn't those play out between same-sex couples as well as opposite sex couples and wouldn't allow for some kind of understanding as to happened? >> again, it has only been, i believe, since 2003 that california has had a robust partnership law. alan's point is that the robust domestic partnership regime and how foreign is equivalent to civil regimes elsewhere. it is in all the rights to domestic partners. it does not give the name.

we said earlier that it cannot call themselves married. they can call themselves whenever they want. >> not if they apply for a passport. >> if they are married they cannot do that. >> it is a federal crime. to say you're married on a federal form? >> people on both sides agree that the word marriage matters. the gays and lesbians see it as a degradation of some sort of recognition. those of us supporting to a traditional marriage see the word marriage draws on its traditional role that is tied to

procreation and child rearing. towant men and women understand that marriage is the ideal context in which to raise children, and in a sense to read the fine marriage in a way that eliminates the essential components. >> you have a bunch of people out there raising children right now cannot get married. if you think marriage is an important thing to happen your parents, if you think they would benefit from having unmarried parents. >> in california they have all the rights but not the label. >> even then they do not give federal rights. >> that is a separate question. >> but right now they do not get any. there is no relationship recognition at all. in order to avoid the speculation that straight people are going to be more

likely to have children and their household without being married, how do make that happen as? i do not understand it. street people will have more kids about getting married because you're letting gay people getting married is speculation at best and is offensive. people are so unhappy with the people getting equality they will stop getting married. >> that is not the argument. >> what is? >> let me agree with you that the interest of the kids being raised by same-sex couples are a factor in the calculus. did the argument is not that people are going to be offended by same-sex couples. the argument is that the redefinition of marriage away from its core components says marriage is not about procreation at all.

millionsmillions and of potential victims of a classic marriage culture. if we do not restore that, in this country is doomed. >> you think that applies the same whether you have civil unions or an institution called marriage for same-sex couples ? point think the tipping is what it is called. >> i think it is a significant defining point. there is this inconsistency in the arguments that i hear in that we hear that the kids of gays and lesbians by any measure do as well or better anybody else.

on the other hand, and this is not married gays and lesbians, but somehow there's so hurt. >> you said marriage is the most important thing. that is the harm. it is illegitimate children living with their parents. they do not have this option and being married. >> what is the big deal? if gays and lesbians have all the bright except being able to being called married and they say we want to be called married in california has given the legal rights, what is the big deal? who has the burden of showing

what is the big deal? >> the first conclusion you is that there is only one remaining potential justification for what the state is doing. that is to maintain the idea that message that same-sex relationships are less valuable. that was off the table. we won that 10 years ago. >> you won that in the case of a criminal case. >> it stands for more than that. >> you may be right. >> i would be very surprised.

>> is reading of the majority opinion was quite accurate. >> it was a criminal case. it certainly was. moral disapproval. what is the big deal? where do you stand? >> the use of the word marriage masters. it matters because we have a concept of marriage that has existed throughout western history of a man and a woman and it exists for a purpose. i am repeating myself. >> to whom does it matter? >> society in order to encourage men and women to have and raise children in the best -- context possible. >> that is why the proponents are injured by the non- enforcement. >> if you are trying to tie in

a standing question, the proponents are standing in the position of the state. you will not mean to. the state has interest in defending the law. these opponents are starting interest to the state. the concern is about how society and the institution of marriage will be damaged by this radical definition. >> you agree that moral disapproval as off the table? >> we are not going to criminalize a homosexual activity. we cannot do that. we disapprove of its. we are not going to allow same- sex couples to call themselves

married because we disapprove. >> moral disapproval has nothing to do with these bases for defending traditional marriage. are there some voters who may have voted because of proposition 08 because of moral disapproval? it goes both ways. of course people will have mixed motives. indo you think the states the house report and on the floor are off the table? the court may not consider them? >> of course a lot of this will tie into which standard of review the court and adopting. when you have plenty of statements in the congressional record discussing the

importance of uniform eligibility it is weird cherry picking to say we will give decisive wait to these one or two or three statements. >> one or two or three? my goodness. the place is replete with expressions of homosexual homosexuality is something that ought to be condemned. this is not the gist of that debate. >> there were lots and lots of gay-rights supporters who voted for the defense of marriage at who had strong support for people like the game right. for gay rights. the numbers are something like 87-13 in the senate arablearable -- and comp

in the house. the idea that it drove the adoption of doma -- >> it was an election year and a people do not have the political power to protect themselves. >> i want to ask whether, are there any intermediate positions between striking doma down entirely and up-holding? >> i do not think so. areou said that there different cases. they are. the question is, do these states have the authority to retain the traditional state of marriage? not that they have to. may they? it is the question on both. >> not asking you to yield their position.

are there any interim positions in the case that the court could find between on the one hand doing what they suggested, to stay -- say the states have the full power to uphold or to change or do anything was same- sex marriages? and what the strongest view of the challengers is in prop. 8 that calls distinguishes our unconstitutional. >> one is a standing argument. >> it would be in a weird way. it would probably mean that there be marriage equality restored in california. >> why? >> the judgments stays in effect. i do not think that is clear at all. it is more than that.

>> what you think the governor will do? wedding there would be bells. >> this would be nothing to do that. the merits in the case, there is a narrower grounds which were basically judged by reinhard. california created a separate institution of domestic partnership. theargument would be that state that has done that has essentially disclaims any meaningful state interest in continuing to hold the "m" word for same-sex couples. there is no real meaningful distinction.

>> the question of whether the other 35 states have to. the other one would be taking california and in ticket back. -- and took it back. >> what did he say? >> he wove them together. >> they're always driven by coherent.

-- the court is not always driven by coherence. >> interestingly, the defenders of doma and prop a hero how the world has changed since doma was passed. whatow, regardless of power the gays and lesbians had in 1996, they surely have more power now. that argument is in boats at the conclusion of the reply brief of chuck cooper representing prop. 8. what kind of impact do you think that clear change in the political world is likely to be had? >> it makes manifest that than imposing on the

country another roe versus wade, a matter that is being addressed through a robust of a credit debate. the debate will continue. -- democratic debate. that debate will continue. i have no illusions that my preferences are going to prevail everywhere. >> the genius of federalism is that things work out. and satisfies our people's interests. there is more a sense of this has been a fair fight.

the legislative process is also far better coming up with accommodations, protections for religious liberty, all sorts of compromises and the declaration of a right which anyone who supports traditional marriage is the equivalent. >> do you think keith precludes -- he precludes the statute you refer to? >> look. the very rhetoric says the position that president obama had until a year ago is akin to racial bigotry. look. we know how to deal with racial bigot in this country. we stigmatize and deprive them of all sorts of opportunities. that is the path of which things will be headed quite quickly. we welcome that. it would not be good for the country.

if there is a declaration of a fundamental constitutional right to marry a person of the same-sex. thean you talk about analogy? >> the change a popular opinion will have on the justices. you have one hypothesis is that the election returns. that is a cliche. they will be comforted by the fact that they're not getting too far ahead the american people. then you have the alternative which is being strongly argued by the other side. this is just a moment not to get involved. there is no way you can tell what will affect which the justice which way. waderms of the roe v

specter out there and the creation of continued war, this is backed up empirically. these issues are fundamentally different in that because unlike abortion, there is no victim they believe is being murdered. people very easily accommodate themselves to allow everybody to have the same opportunity to enjoy the benefits of married. you see this in state after state. people just calm down after a couple of years. if the supreme court were to say everybody has a right to marriage equality there will be some hub of about that. i do not think it'll be

remotely comparable to the roe v wade situation. >> paul may be right that the aftermath of a role like ruling will be very different in the context of same-sex marriage and an abortion. it may play out over the decades in a tax on traditional religious believers. for example, can you qualify for a grant or a scholarship? if you get a government job you hold this position that is suddenly declared bigotry? it would be very contentious and divisive process. i agree that it might well play out in a very different way in the role it has played out. >> audience, next chance for questions. >> wow.

>> let me get this out there. mr. whalen, get the sense from seeing the amount of young people in the room that he may be in the minority, just guessing. i am glad you here. young people do not see what is the issue. that said some people may even say what is the big deal about getting married but that is another radical thing i will i get into. >> we'll have 10 minutes. >> you talked a lot about tradition and a radical notion. how does this relate to the loving versus virginia? >> a couple of questions. >> my question is for paul smith. what is the primary purpose of

the federal government incentivizing marriage in the first place for anyone? if same-sex couples can show they're able to fulfill the purpose, what a special or unique about same-sex relationships that should preclude the federal government from incentivizing any and every other relationship that could fill the purpose such as brothers and sisters that want to live together and file a joint tax return? comparedtators have this to decisions such as plessey and brown and their significant to the african- american community. how do you think the court will weigh the legacy of those cases in their decision? >> three great questions. the panelists all answer however they want. >> the ugly anti laws were -- weremisogynation laws

recognized as to the traditional understanding of marriage. they were phrased that way. --y were in positions and a impositions of a restriction on top of what marriages. -- marriage is. by contrast this has adhered into what marriage always has been. it involves a radical redefinition to say it is not a male/female union. >> the questions involved the idea that the federal government has a long history of incentivizing marriage which is complicated. the basic posture of the federal government has been not to do anything about marriage except except state decisions. there are some benefits that help married families and widows and things like that. there are some taxes that go up. but there it encourages economically is the

complicated questions. why should whatever that is applied to people who want to marry their family members, wise? whenever you start getting into these parade of horribles, whether prostitution or polygamy are incestuous, and there are other interests at stake. it says is the clearest example. clearest is the example. the reason why it prohibits is they are both psychological and physical health reasons why that is inherently and help the of the situation. situation.y the state has a legitimate interest unrelated to anything we have been talking about today in regulating that. >> how prejudice of you to deprive adults to believe that their happiness depends on airing the assemblies from -- from marrying their sibling from preventing the assemblies from doing what they are able to. >> they're willing to take the

risks. who are you to say they can. -- they cannot? polygamy, it is not a slippery slope argument. as a matter of history, polygamy is up the slope from same-sex marriage. we have had plenty of examples throughout history. there's a distinction between two and three and less removed to redefine marriage as a same- sex union. >> we will look around. whenever you talk about these limitations, that whole case of plessey in separate but california will have

these two institutions. it is very reason it did of the -- resonant of the separate but equal concept. >> i wish there was the more time getting the law right and less time worrying about what their legacies might be. >> thank you. >> we were talking about political power earlier. the argument was brought up that there are specific ones that have political power presently. should those protections at some point been taking away when are seen to have enough political power? >> that is a very interesting question of what i have no view. i am a skeptic of the of this high

scrutiny enterprise. >> thank you all for being here. some opponents of marriage equality say that same-sex marriage bans are not discrimination because straight men cannot marry a man and a man cannot marry men.

.and on wednesday wiebelhaus t o

>> we have been talking about pakistan and its international outlook for half an hour. we have not mentioned india. that would come up early in the conversation. i want to ask you about pakistan and india relations. on afghanistan -- even if the leadership has a sophisticated view of mechanisms going forward, the public, do they perceive india as trying to achieve a level of influence that gives them concern in afghanistan?

we probably have some challenges in this area. just addressing the questions --my perception is that india's involvement in afghanistan has been in the economic and commercial arena. afghanistan's advantage is that it is lust with federal -- mineral wealth. one of the stories of our time of a huge market economy in the india at the same time.

you have the energy resources of central asia. there will be a connection that is made. where the lines will run. from the perspective of the u.s. government, we would like to see the energy supply to run through afghanistan andrew pakistan - and through pakistan. there has been progress in the relationship between pakistan and india. are on the cusp of pakistan granting nation status to india. most pakistanis are in favor of enhanced economic relationships

with india. >> no argument from me on the stabilizing influence of having common economic interests and putting pipelines in afghanistan, pakistan, india. opposition is -- on iran. ourave had a duty to warn pakistani friends that the pipeline is under consideration and likely to be sanctionable under u.s. law. i am attempting not to conduct megaphone diplomacy on this issue. they are aware of that position. has proved to be less than reliable on many such energy p

rojects. willpe tahat our pakistani take this as friendly advice that has been a significant partner in the energy field through our dialogue in the projects i mentioned. of ourthe key elements systems program. >> bill on india -- still on india, there has been a sense that you look at the military balance between india and soughtn and the u.s. has strategic stability on the subcontinent. is it fair to say that i's continued -- india's forced ation has put pressure

on iran? what does that do on the nuclear side? that at are questions the end of the day you would have to ask the pakistani how they see these questions. military and the pakistani has been focused over the past few years on the insurgencies, on the threat along the western border, in the travel areas. focusing resources there.

will betary planner looking at a variety of things and in looking at conventional threats as well. have been paying on theon to developments eastern side. to make sure the situation is stable. we have confidence in the pakistanis. i want to finish that off by asking the question -- if it

were understood in pakistan that in washington policy people understand that there have been disruptions to the relationship and the u.s. has a part in that. in a strategic believe that the nonproliferation arena this and northnt when wiran korea are testing the limits and this could go from civil to nuclear to weapon ice in the worst taste. st ceaponize id in the wor ases. look at the rest of the world. potentially could be quite useful and important is there was a enough trust for the two sides to engage on the subject. how would you rate the potential

for meaningful conversations? >> u.s. and pakistan going witha dialogue the nonproliferation working group. we have some high-level engagement. this is a topic that is best handled discreetly and quietly. i would agree with your assessment that there are opportunities in this regard as .ell as risks >> what i want to get to is something in the home a public diplomacy arena. in the past, officials have met at high levels in the pakistani speculate on what is being done.

some officials -- secretary clinton broke the ice with engaging in public discussions in pakistan and leading u.s. views be heard whether they want hundred percent in accord with the sentiment or not -- pakistani sentiment or not. what advice would you give visitors from washington who are engaging the pakistani media? what is the opportunity here in the public diplomacy realm and what is the message? >> there is a lot that could be done. one of the things we need to do is open the aperture and the dialogue. we need to have as many american voices out there telling our story as possible. in my mission, we have people who are engaged with the press

all of the time. forect matter experts trading our story. we want to get past the story of the day because the story of the day may be up or down. talk about the long-term partnership. we make efforts to get pakistanis to appreciate what we have been doing in the energy field, the work in terms of refurbishing hydroelectric dams projectorter of a big that will be transformative over the long term. i think the message has to be onet one of partnership and that is conducted on the basis of mutual respect.

we have our disagreements. we will have our disagreements. the important thing is that those disagreements be aired as much as possible and with respect for both sides. the other thing that is important is that it is important as americans that we -- the most effective ways are the pakistani voices. primect that the former minister was -- foreign minister was talking about our relationship. in washington, he was talking about the positive relationship. that carries more weight than seniorg i can say or the

officials in the u.s. government. we have to work on the bilateral relationship and mutual respect for peace. also make sure that our message is consistent. >> do you think that in washington and congress their decisions and budget-cutting and the drawdown of afghanistan of forces, one would imagine people are saying our involvement is declining. should we look at the assistance and trade benefits to pakistan in that category? others may suggest that this is the moment where this becomes more significant. what would be the message to congress and the ashington policy community in terms of how this fits in the array of u.s. engagement with pakistan? there is an object lesson

from this engagement from pakistan and afghan. this has been one of the messages of my ambassadorship in pakistan. 2014 is not and should not be a repeat of 1999 or 1990. that is how the region is interpreting 2014. afghans think we have done successful work. pakistanis and others are interpreting the transition in which 14 as being a repeat of .he soviet withdrawal i would reject the comparison. that is how the narrative has developed. we paid as a country a steep

price for our disengagement in afghanistan. our refusal to consider a political settlement is part of the 1988 geneva accord. our decision to impose .anctions on pakistan in 1990 we paid a price for those decisions on september 11, 2001. we pay a price and terms of some legacy of concern. i cannot predict the future. i cannot predict how things will develop anin the next few years. we need to be cautious. we have stakes in that region. disengagement would be a mistake. catastrophic. >> let me open the floor to questions. do we have a microphone? wait for the microphone and

identify yourself and if you are affiliated with an organization. [indiscernible]

the relationship has been very touch and go for a long time. contradiction in the actions and what is said. [indiscernible] one of the biggest highlights may be the --

[indiscernible] for our position on the iran pipeline has to be understood in the context of around policy. the entire world and international community has a stake in iran not developing a nuclear weapon. wouldd think pakistan

have similar appreciation of the dangers of proliferation. sanctions have been imposed on iran to help bring iran to the negotiating table so the issue can be addressed. there is a broad question of international application. we are sympathetic to pakistan 's energy situation. mentionedjust -- i hydroelectric. we have been refurbishing thermal in pakistan and some others. we have questions about the reliability of iran as a part netr. i foris a large room in

s smarts. it' sma energy reform has to be a key issue for any government. there are resources available including potentially gas and other domestic sources. with the right set of pricing mechanisms and questions of addressing circular debt, there can be done.at the united states has been a .ood partner in this regard needs to be on iran understood in the full context. >> in the front row.

cofounder of the stimson center. > it is hard to say [indiscernible] currently there is no torastructure for containers cross the border. worth the concern from a u.s. government and u.s. congress? infrastructure development in support of direct trade. i am unaware of the situation involving containment.

thank you for referencing that. i would say broadly, yes, we want to be supportive of an enhanced relationship between india and pakistan. we need tos an area where be guided by the government of pakistan. onre is a lot of history these issues. there are legitimate conservative -- security concerns. a lot of progress has been made. pakistan has moved from a positive risk to a negative risk. we will want to be supportive

but take our lead from both governments in this regard. >> let us come over to the front row. wait for the microphone please. my name is doug johnston. been on the ground on pakistan for years. despite the democratic trappings, pakistan is a futile country at heart. this accounts for systemic problems not least education in public schools. despite the money u.s. gave pakistan, normal life has not improved in the public school system. it accounts for the explosive growth. i see one area that is

hopeful. one of the things that this government did during its five years in power was to develop a party for health and education to the provinces. something that we as americans would recognize. many of our educational programs are handled at the state or lower levels. in the punjab that opportunity has been t here. has government of punjab put resources into public education. are is our british friends invested in supporting education in punjab.

hasgovernment of punjab introduced some serious metrics for tracking performance of schools and tracking educational levels. there is a long way to go. that is a bright spot in one that can be emulated more broadly. i agree with you on the importance of this as the subject and one that will have to be addressed by any pakistani government. >> today a rally for same-sex marriage. case is challenging california's ban on same-sex marriage -- see it live on c-

span 2. >> the supreme court hears oral arguments for and against same- sex marriage. today it is hollandsworth v. perry. the case follows the 2008 passage of proposition eight ending same-sex marriages. the ninth circuit court of appeals heard the case ruling provincial -- proposition eight unconstitutional. wednesday the court hears the case centering around the marriage act. they will not argue in defense of d.o.m.a. we will bring you the recordings when they are released by the court starting at 1:00 p.m. eastern here on c- span. >> the supreme court hears arguments in the hollingsworth

v perry case challenging the constitutionality of california's same-sex marriage ban. ont, legal experts debate the issue. from the george washington university law school, this is 90 minutes. >> you have a program that describes their history. they have filed briefs in the case pending. was the victorious counsel and warrants against texas. to my right is willing -- ed w eiland and activist in the reagan administration and works -- >> bush.

>> excuse me. an amicusso founiled brief on the case. the first case i will talk about is the one that will be argued tomorrow. it is called hollingsworth against perry. it began with the california supreme court ruling that as a matter of california state lot of laws banning same-sex marriages were unconstitutional with the california constitution. immediate become a process was begun in november, 2008, and the voters in california passed an initiative, an amendment to the constitution that says marriage shall only be between persons of the opposite sex, one man and one woman from outlying same-sex marriage. at the same time, california high already in place well before the first decision

statutes that created domestic partnerships that provide all of the legal rights to same-sex partners as marriage did, but they could not call themselves married. the reaction was fairly prompt. the case was filed in federal court after an unsuccessful case in state court, challenging the constitutionality this time under the federal constitution of the ban on same-sex marriages. the governor of california, and the attorney general, who were the main defendants, declined to enact a statute. and as a result, the proponents of proposition 8 came in and defend the case and the merits, including a trial, before judge walker in the northern district of california. after the trial, judge walker ruled on both due process at an equal protection grounds that the law was unconstitutional. an appeal was taken by the

proponents and the governor and attorney general did not appeal. that cause some difficulties. in the ninth circuit, questions were raised as to whether the court had jurisdiction, as to whether they were the proper party before the court. and it was referred to the california supreme court, which ruled as a matter of california law that the proponents of the issue were the proper parties to defend the statute when the attorney general and the governor did not. then went back to the ninth circuit and the ninth circuit decided the law was unconstitutional as a violation of equal protection, unlike the district court, which ruled on due process. it did on a very narrow grounds, on the grounds that because california once had same-sex marriage as a matter of state constitutional law, it was subject to a higher standard when it tried to take away that right and the state had not met that standard.

review was sought and it was denied, and in the case went on to the supreme court, which has agreed to hear the case, including the issue of whether there is the proper jurisdiction, the problem being that the proponents do not have standing in the ordinary sense of the word, that is, they are not directly injured in the normal sense. the supreme court will hear that argument tomorrow. in the meantime, the solicitor general of the united states has intervened on behalf of the challengers as to the constitutionality of proposition 8. the second case is different. in this case, the plaintiff, edith windsor, was legally married under the laws of the state of new york to her spouse. and when her spouse died, the irs decided that because of the defense of marriage act, which

says that for federal law purposes a person is only married if they are married to a person of the opposite sex. she had to pay the estate tax because the estate tax can only be forgiven if parties are lawfully married as a matter of federal law as a result of the defense of marriage act, which was passed in 1996, and says that only opposite sex marriages are valid as a matter of federal law. only in that instance with the tax be forgiven. the cases will be heard on wednesday and is one of many defense of marriage act cases. the plaintiffs have prevailed in all of them in a number of jurisdictions and the court chose this one as well. originally, the justice department defended the constitutionality of doma and then after it lost in district court, it decided not to defend the constitutionality, but that a heightened standard of review was applicable, and under that heightened standard of review, it could not pass constitutional muster.

when the district court does this in the case before the court now, the house of representatives known as the bipartisan legal advisor regroup entered the case to defend on behalf of the house, claiming that the law was unconstitutional, which meant that at least there would be an adversary presentation, which there would be in the court appeals case. in the court appeals by a vote of to do want to buy they struck down the line and the cases now before the court. when the court granted review, it did something quite interesting. although both the house and the solicitor general as well as the plaintiffs all believe there is jurisdiction, the court independently raise the question

of whether there's jurisdiction or not ended appointed a harvard law professor to appear as amicas to argue that everybody involved is wrong and that the court cannot reach the merits of the case. the plaintiff will prevail in terms of getting her $356,000 plus interest back in either event, but the real question is what the impact of it will be beyond the plaintiff. and the same may be true in the prop 8 case. the four plaintiffs there were held by the diss record to be entitled to an injunction ordering the state to grant them a marriage license, they will certainly be able to get a marriage license if the decision is upheld. even if it is set aside on grounds of lack of jurisdiction. what other impacts will have? any other thoughts on jurisdiction or other fact that our audience should know about before we proceed?

>> let me mention one aspect of the prop. 8 standing that allen did not have a chance to get into, that is, the specific holding of the california supreme court was that the prop 8 proponents represent and are entitled to certain interests of the state in a litigation. the court did not reach the separate question that the ninth circuit court certified to it, whether the prop. 8 proponents had a particularized interest. i think it is clear that they will prevail on the standing issue and the court will be decided the case on the merits. >> i really disagree with that. >> good. >> i'm not predicting that steny will be the basis of the decision. but i think that because of the exact status of the proponents as a matter of federal law and whether they speak to the states in the way they have to based on the state injury is clear enough, and there is a brief by

walter that talks about that problem. if we're looking at the biggest questions the court could reach in the case, that would be a good way to do it. >> you think there is clear law? or do you think that it makes it difficult for the supreme court to not reached the merits of the decision? >> i think the california supreme court withholding fills the gap that the u.s. supreme court in dicta have recognized in a case called arizona vs. english, i believe. bertran >> and it basically says that now we are proponents acting on behalf of the state.

i do not mean to be predicting what the court will do, but -- >> they offered it. >> yes. >> and do you think it matters that they went to get permission? do you think the timing matters in any respect? >> no, i do not think it does. i think the california supreme court is the authoritative interpreter of state law. i do not think it would have made sense for it to have been done any earlier. at least, if your account of what happens in the district court proceeding is right. there would have been no reason for judge walker to certify that question for the california supreme court. >> the thing that is kind of murky about it is that they were the official proponents of the initiative. but it is not like they were

designated that they could speak for the state or do the kinds of things that a special attorney general could do. it is expected that they have standing with the weird situation that 40 years from now, 80 years from now, whichever one is left alive will still be defending them. and there are five of them and they could disagree about how to defend. there is no process by which it can be sorted out. i could imagine that the court would say, if you want to have private citizens representing the state, you ought to have at least some kind of deputizing procedure and say, these people will bind the state with their position in court. >> the initiative process is designed to bypass obstruction of state officials. >> let me ask you this question, because i know you have written about this and you talk about this. do you think that officials, both federal and state officials in both of these cases were right to you refuse to defend these cases?

>> no, they were derelict in their duties. they were not carrying out the duty they were constitutionally charge to do. if you look at the obama administration and the defense of marriage act, first the administration sabotage the case in its pertaining to defend and then abandoning the arguments that had been made previously in legislation. and then failing to adopt the claims made by both parties, it claimed that it had some basis in no longer defending the defense of marriage act at all. and then in california you had governor schwarzenegger and then attorney brown failing to live up to those responsibilities. that creates complications and it may explain why we do not have too much trust in this

area. there can be some weird, hypothetical situations down the road. but i think in both cases there is ample room for the court to reach the merits. >> paul, what do you think? >> it seems that the minimal expectation of people in this position is that they file the appeal. and therefore, make sure that the case gets up to the highest authority of court to decide the merits of the case. the decision that the obama administration made to continue to enforce doma and also to bring in all the way to the supreme court simply said that we will give you all of the constitutional analysis that we think is defensible. in the point of litigation were cases were being filed in the second circuit, where there was no law of the circuit that could

be applied to discrimination based on orientation and when you sit down to answer that question according to what the rules are, it is extraordinarily difficult to mount a decision that says that discrimination based on sexual orientation ought to be subject to a rational scrutiny. they came to the lawyers conclusion that they could not make that argument. the only argument they could make is that doma implies strict scrutiny under the equal protection law, which no one has been able to argue because it is not arguable. the law is so close to flat out irrational that it cannot come close to satisfying scrutiny. >> paul said the magic words, and not all of the students in the room here, and certainly not the audience, understand advance constitutional law and know what a heightened scrutiny is all about, and intermediate scrutiny, and rational basis.

can you give us a primer on that? >> under the 14th amendment there is an equal protection clause that says you should not deny equal treatment to groups of people the law on the other hand dr. oz distinction between groups of people all the time. there are people who speed and do not pay money on tickets and those who do. the law says that certain kinds of discrimination are subject to extra heightened scrutiny because they are viewed as presumptively bad, presumptively based on illegitimate animus or other criteria. and virtually other lines that are drawn between groups of people are subject to the constitution and submit to rational scrutiny and in most instances, that means it is upheld. the first question that you have to ask is when applying equal protection clause, are we going to view this as gender discrimination or of economic

regulation, or some category in between? it is all about ratcheting up the level of scrutiny. >> what is the effect of higher degrees of scrutiny, in terms of -- a able to defend a lot? law? >> in order to defend the law with heightened scrutiny, you have to come up with not only rational justification, but a very compelling justification. it has to be the real reason the law was passed, not just hypothetically reasons. and there needs to be no prescriptive way to achieve that same purpose. basically, it means it is a very difficult obstacle course for the defender of the law to get through in proceeding to persuade the court that the law should be upheld. the challenge is to get heightened scrutiny and the federal law has come in and said that they're both able to get heightened scrutiny. >> right, basically that people

should not be discriminated against based on their gender. >> do you accept that, that sexual orientation ought to be treated like gender and so forth? >> i accept it in terms of rational basis and heightened scrutiny, of course. i think we see a lot of malleability in both standards that judges have introduced. i would contest whether there is any real intellectual integrity at all to heightened scrutiny. the more important point that i make is that when you're dealing with something like marriage, male-female marriage has been around in all stages of this country since the constitution was first adopted, in all states in this country since the civil war.

the idea that traditional marriage has been unconstitutional since 1868 is far-fetched. let me be clear. we need to distinguish constitutional views from policy views. and there is a debate going on in this country about whether states, and the federal government in its role, should redefine marriage to include a right to marry a person of the same sex. that is a proper discussion and debate to go on. my view of the constitution is that does not speak one way or the other to the question of same-sex marriage. it leaves the matter to the political processes. it is permissible for people to retain marriage laws and it is permissible for them to revise them. but the idea that judges are going to play around with these levels of scrutiny and determine something that is so clearly established everywhere as constitutional, as expected is now going to be thrown out the window, i think there's something wrong with standard of

scrutiny if we wield them in that way. >> it suggests a certain level of fear of the level of scrutiny if you just apply the rules. what he has said is that we should go straight to justification and that is why we should not have any scrutiny in the first place. when you decide what level of scrutiny to apply you do not look at the particular law at issue and say whether it is a good law or a bad law. you say, if we're going to have marriage and a people do not, is that something that is presumptively good or presumptively bad? is that based on a history of prejudice or real reflected differences between these two groups of people? most of the time gender discrimination is not a good thing. is it like that? or is it not?

clearly, it is. these groups of people, just like minorities to have been kept in oppressive conditions, and they are kept in a way that is completely irrelevant to the benefit they bring to society. laws are designed to prevent them from ever having the chance at marriage equality. then the question is, under heightened scrutiny, does the law that continues to discriminate against gay people and marriage rights have justification? what are they? are they sufficiently compelling? that is a separate level of analysis and i do not think you should mix them together. >> i do not have any problem at all about how the courts except to the standard of everyone you should go on here. i'm simply making the point of how malleable they are.

but i'm happy to address how we looked to these standards for rational basis review and how it ought to apply. the city of clyburn case, where individuals in a group affected by law have distinguishing characteristics relative to the laws that the state has been able to implement. of course, they're very reluctant, as they should be, to use high uncertainty. we have been talking for several minutes about these cases without discussing at all what marriage is, what the purpose of marriages, and why it exists. if we look at those fundamental questions and then think about the standards of review, the answers become quite clear. why did marriage develop? in this society and elsewhere in the world. marriage exists in order to channel the procreative capacity of opposite sex couples in order

to channel the procreative capacity of opposite sex couples in order to find a way to raise and civilized those born out of the womb and transfer them into productive citizens. that is the present marriage exists. it explains why the male-female component of marriage has always been at its core. that can be changed and it is constitutionally permissible to change it, but when you understand that and see that is what is at the core of marriage, i think the case becomes very easy. >> i think what happens with constitutional law in an area like this is that the principles that were established in 1868 are still there to be invoked by new groups of people as these situations arise over time. and when the net has changed is that we now have hundreds of thousands of gay couples out there living in long-term relationships and the supreme

court has the same importance of function to them and raising children and interacting with society. that has to be taken into account as to whether there is a sufficient justification for changing the definition of marriage. the world as a different place and under the enduring principles of the 14th amendment, gay people have the same right to call upon the constitution in an oppressive situation as everybody else. black people got it. ethnic groups got it. women got it. but those gay people, they are too late. you will to have to fight it out in a democratic process.

>> do you think that the constitutional rights of gay people today are greater than 100 years ago? >> i do. i think the rights of discrimination take into account of how people are living. the whole world is different. there are gay families living in long-term allegiance down everybody's street and to suggest that somehow we're going to go back and do this what thaddeus stevens things about gay marriage in 1868 is wrong to me. >> democratic processes are not the proper forum for accommodating the changes you are describing. why we cannot through states and through congress decide how to address this, that is what a constitutional republic is all about, not thinking that judges have the authority willy-nilly to impose their own view and upset the social institution of american society.

>> what makes it as constitutional republic as opposed to a pure public is that there are rules that constrain the way you do things. you can do some things by democratic vote, but something you cannot. look at the principal protection clause and how it works. is this a group of people that are to be able to invoke in the way that other people have in similar situations? i think the argument is extremely compelling if you take the court ruling in lawrence vs. texas, that the government has no business telling people that they should not live together and be having sex together. the people who dislike that are relevant to law. given the situation that we have with tens of thousands of children in these families living without the benefit of their parents, i think that is a constitutional argument for not just letting the democratic process go forward. it is a strong one.

if you look at how things move, they would probably repeal prop. eight. there are 30 states that require you to overcome the constitutional amendments precisely because they do not want their students to have the opportunity to use a democratic process to have their needs met. >> state constitutions are easy to amend. >> some are. some are not. >> they can easily be amended the other way. i think too many people use that as a model to make people think

that it is too difficult at the state level. >> i want to turn to another issue under this heightened scrutiny. that is, one of the test that has applied under heightened scrutiny is whether the characteristics are immutable. what is the state of the record of these cases and what is the status of knowledge about the mutability of sexual orientation, and should that be a deciding factor in any respect? >> the science is that for most people, gay people and street people, their sexual orientation is largely not subject to change. the professional groups that filed briefs in these cases, the psychologists and psychiatrists and everything will tell you that efforts to change orientation one way or another through therapy will not succeed in most cases. >> was that issue tried in the prop 8 case? >> there was testimony about that. >> was there a fact finding? >> i do not remember whether there was a fact-finding or not. but remember, there are people who are bisexual and go back and forth. it is not that for everybody orientation is all one way or all another way.

it is largely to that wherever you are, you are. no one is 100% sure how much of it is genetic, how much is nurture. the real question ought to be this. is this something that people should be required to give up in order to be treated equally? i don't think anybody could look at that and say, a person who knows that they're gay ought to be required to live a straight life in order to have full equality under the law. >> i think we have jumped at a little bit. i'm happy to jump into this, but in terms of heightened scrutiny the court has made it clear that the court should be reluctant to establish new class is. >> but it has to be categories like race or gender.

>> i agree, but the court has identified its political powerlessness. >> that was next, this. >> about the point of the mutability, i'm going to cite plaintiffs' experts from the prop 8 case. these are all people that opponents of proposition 8 called as witnesses. first, even the definition of sexual orientation is disputed by the other side's experts. is it behavior? is it the desire? is the identity? itself identification? -- self identification? plaintiffs' experts found that there is some degree of same-sex behavior, desire, identity, the three categories overlap only in 24% of men and 15% of women. plaintiffs' experts also testified that it may very through the course of a lifetime. with females, it is a lifelong process in which multiple changes and sexual orientation are possible.

these are not my words. this was some social scientists. and yet another, we do not really understand the origins of sexual orientation in men or women. and in 2009, the psychiatric association said that there are no studies supporting any fears of a biological ideology for the origin of homosexuality. i do not claim to understand much at all about scientific issues of sexual orientation. what is clear to me is that the scientific evidence is radically inconclusive on this. and there's simply no basis, no scientific basis for the statements made by the other side in the briefs that this is somehow immutable.

every gay and lesbian is determined that we at the moment of birth forever thereafter. >> the vast majority of gay men know that they are gay very young and say that with their whole lives. with a man, there is somewhat more fluidity. but if you think that sexual orientation is of the net wanders around, if you are a straight person, what are the odds that you're going to wander into being gay when you're 30? >> it happens a lot. >> no, it really does not. >> if the supreme court were asked to rule on this case and one of the issues is a mutability or something close to a mutability, should we have a trial on this? >> it is not a scientific question.

it is a question ultimately of values. is this a characteristic that is likely to be something that is part of their being over a long time frame? or to put it differently, something that people should be required to give up in order to be treated like everybody else? it is not by any means the most important criteria, but that is how you ought to think of it. >> it ought to be, rather than actually is immutable. let's go to the powers that you want to have as a significant factor. we will not have an opinion as to how you make it the most significant progress i've already said that. yes, it is the most significant. the very question is when you remove something from the democratic processes. when you have the court intervene on behalf of the politically powerless? but the court said in clyburn is that the court negate any claim that the mentally retarded are

politically powerless in the sense that they do not have the ability to attract attention of lawmakers. there is the definition of powerless. no ability to attract attention of lawmakers. i think any real assessment of political power in this country shows that gays and lesbians have -- is a credit to their lobbying and the cases they have made. they have amassed a tremendous power. in fact i think it is the second largest lobby administration. -- is again largest lobby. the administration has spent to do the will of gay and lesbian cases in the doma case and with don't ask, don't tell. >> and with prop. 8, 2. >> absolutely. and there is a briefing here that says that gays and